LIBRARY OF CONGRESS. 

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UNITED STATES OF AMERICA. 



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ORATION 



DELIVEUED AT THE 



DEDICATION 



Providence County Court House, 

DECEMBER 18, 1877, 

By the Hon. Thomas Durfee, 

I'HIEF JUi^TIOE OF THE SUPREJIE COURT OF THE STATE OF RHODE ISLAND. 



P l< () V 1 1) E N C E : 

E. L. KKKKMAN & CO., PRINTERS TO THE STATE. 
1879. 






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ihU of |l^obij Islanb, ctt. 



Ix General Assembly, 

January Session, 1879. 

Eesolutions concerning oration delivered by Hon. 
Thomas Durfee, at the dedication of the Providence 
County Court House. 

(Passed Marcli 26, 1879.) 

Eesolyed, That His Honor Thomas Durfee, chief 
justice of the supreme court, is hereby requested to 
furnisli tliis general assembly with a copy of the admi- 
rable oration spoken by him at the dedication of tlic 
Providence county court house, on the 18th day of 
December, 1877, that the same may be api)ropriately 
printed. 

Resolved, That the secretary of state is hereby in- 
structed, upon the receipt of the manuscript of said 
oration, to cause one thousand copies of the same to be 
printed; and the state auditor is hereby authorized 
to draw his order for the expense thereof, out of any 
money not otherwise approi)riated in the treasury. 

A true copy. Attest: 

Joshua M. Addeman, 

Secretary of State. 










ifll 




PREFATORY NOTE. 



The Providence County Court House is located at tlie 
soutli-west corner of Colle^'C and Benefit streets, in tlie 
city of Providence, and occui:)ies what was formerly 
known as the Old Town House lot, a site which has 
been used in part for public purposes for nearly a cen- 
tury. The hind was condemned and taken for j)ul)lic 
use as a site for a Court House for the county of Prov- 
idence, by act of the General Assembly passed March 
9, 1875. On the following day, Messrs. Amasa S, West- 
cott, EdAvin Darling and Tiiomas P. Shepard were 
elected, in Grand Couiniittee, Commissioners to build a 
new Court House on the above designated site, with 
instructions to report plans and estimates during the 
same session. On the 30th of March, 1875, the Com- 
missioners were em])o\vered to build the Court House 
substantially according to the plans by them sul)miited, 
and an appropriation was made therefor. 



6 COURT HOUSE DEDICATION. 

Ground for the building was broken July 30, 1875. 
The corner stone of the edifice was laid by the Grand 
Lodge of Masons, May 15, 187G, the oration on the 
occasion being delivered by Hon. John H. Stiness. 

The building was dedicated December 18th, 1877. 
At the dedicatory exercises a large audience Avas jiresent, 
embracing the members of the General Assembly, of the 
bar, and other gentlemen prominent in public or private 
life. 

The dedicatory exercises comprised a statement by 
Mr. Alfred Stone, of the firm of Stone & Carpenter, 
architects, of the construction of the building; an ad- 
dress by Hon. Amasa S. Westcott, chairman of the 
Commission, who at the close of his remarks delivered 
tiie keys of the Court House to His Excellency Governor 
Van Zandt, by whom a suitable response in behalf of 
the State was made. 

By the Governor the keys were transferred to the cus- 
tody of Christopher Holden, Esq., Sheriff of the county 
of Providence, who received them with appropriate re- 
marks. 

The dedicatory pi-ayer was then offered by Right Eev. 
1'homas M. Clark, Bishoj) of the I^iocese of Rhode 
Island. 



PREFATORY NOTE. 



Hon. Thomas Durfee, Chief Justice of the Supreme 
Court, the orator of tlie day, was then introduced and 
pronounced the oration, which is given entire in the fol- 
lowing pages. 

The oration was followed by an address from Hon. 
Abraham Payne; a collation and post-prandial remarks 
by Gov. Van Zandt, Hon. George A. Brayton, Ex-Chief 
Justice, Hon. Zachariah Allen, Bishop Clark, Senators 
Henry B. Anthony and A. E. Bnrnside, James C. Col- 
lins, Esq., Nicholas Van Slyck, Esq., and Gen. George 
Lewis Cooke. 

The cost of the building, including furniture, was 
$253,253.70, being within the appropriations therefor. 

Dr. Thomas P. Shepard, one of the original Com- 
missioners, deceased May 5, 1877, and was succeeded by 
Hon. John H. Stiness, who with his associates continued 
as Commissioners until the completion of the building. 



Judge Durfee's Oration. 



We are here to-day to celebrate the comple- 
tion of this edifice, and to dedicate it to the uses 
of the higher judicial tribunals of the State. 
The Commissioners having the matter in charge 
have invited me to make an address appropriate 
to the occasion. But what can I say which I 
cannot better trust you to think!'' Certainly I 
need say nothing in commendation of the build- 
ing. You have seen it rise from foundation to 
turret, and, watching the gradual development 
of its architectural features, have learned long- 
ago to admire its outward grace and beauty. 
And manifestly it is as admirable within as it is 
without. Time will doubtless disclose defects; 
but I venture to believe that it is essentially per- 



10 COURT HOUSE DEDICATION. 

feet in its adaptations. It is a superb monument 
to the genius of its youthful architects. It re- 
flects great credit upon the Commissioners who 
have supervised its construction. Especially 
does it signalize the cultivated taste and rare 
practical skill of that one of them who lives no 
longer to receive our congratulations. Beauti- 
ful is it also for situation, being close by the 
city's busy centre, and yet sequestered from its 
noise and agitations. Seldom has justice had a 
worthier temple. Long may it remain a bless- 
ing to successive generations. And long may 
the spirit of fitness and order and majestic sim- 
plicity, here so visibly en wrought, be felt as a 
salutary influence, chastening and elevating, in 
the discussions and conflicts of the forum. 

The dedication of this edifice marks a new era 
in the forensic history of the State. It is the 
first house ever built exclusively for the courts. 
It signifies that the courts have outgrown their 
ancient accommodations, or, in other words, that 



.Il'DGE DT^KFEE's OKATION. I I 

their business has greatly and permanently in- 
creased. Thirty years ago, the Supreme Court 
sat in Providence from sixty to seventy days a 
year; now it sits two hundred days, or three 
times as long. The cases, now, are not only 
more numerous, but also more varied, intricate 
and important. A similar change has taken 
place in the Court of Common Pleas. What 
does it mean ? To what is it going to lead ? 
It means that there has been a great change in 
the community. It is going to lead, and has al- 
ready led, to a great change in the professional 
character and forensic habits of the bar. 

As respects the community, I do not think the 
change has come, as might be supposed, from 
any growing litigiousness. Litigiousness is the 
vice of a shiftless and vacant community, crav- 
ing excitement, and therefore greedy of contro- 
versy. It is not the vice of a busy community 
absorbed in its own affairs, and having, to divert 
its leisure, the appliances of a luxurious city. 



12 COURT HOUSE DEDICATION. 

Rather does the change imply that the commu- 
nity, while becoming more populous, is also be- 
coming more variously developed in its social, 
civic and business concerns. It is a sign of pro- 
gress, not deterioration. The State is a hum- 
ming hive of industry. Its industry is not 
homogeneous, but of many kinds, co-operative 
and competing. Hence new duties, new inter- 
ests, new and complex relations, evolving new 
and complex questions of law and fact. The re- 
sources of jurisprudence are taxed to the utmost. 
New laws are constantly demanded, and the 
General Assembly, as well as the courts, pro- 
longs its sessions. Progress has been said to 
proceed by the evolution of the more complex 
out of the less complex. It is not ascent only, 
but also diversification. Life, as it develops, 
propounds more problems than it solves, and 
can not multiply rights without multiplying the 
wrongs which result from their infringement. 
We, then, who are lovers of progress, have no 



JUDGE DURFEe's ORATION. 13 

right to complain of its complications, nor to 
expect that the questions thence arising will not 
lead to a continual increase of litigation. 

But for us to-day, the matter of interest is the 
effect of this increase on the bar. One obvious 
effect is an increase of lawyers. Thirty years 
ago there were between fifty and sixty practic- 
ing lawyers in Providence county ; there are 
now between one hundred and sixty and one 
liundred and seventy, or three times as many. 
Thirty years ago the bar was not too numerous 
to constitute a true fraternity. Its members met 
often in social and professional intercourse, and 
they met always as familiar friends. To-day 
many members of the bar are strangers to each 
other. They meet too seldom, there are too 
many of them, they are too segregated in pur- 
suit, to feel the bond of professional fellowship. 
Hence they are losing their esprit de rorps^ for- 
getting the traditions of their order, and ceasing 
to have any common sentiment of professional 



14 COURT HOUSE DEDICATION. 

honor or any common criterion of professional 
merit. This is to be regretted. The tone — the 
morale — of the bar suffers in consequence. The 
tendency is to degrade the profession to the level 
of a trade, and to obscure the idea of its public 
and quasi-official character. I would not press 
the point too far. There are lawyers without 
doubt who are sufficient to themselves. They 
need no incentive but their own ambition, no 
safeguard or support but their own virtue, and 
no exemplar but their own ideal. They can 
stand well enough alone, — and yet it is nol)ler 
for them to stand banded with their brothers. 
Indeed they cannot escape the solidarity of tlieir 
profession. For the great majority of the bar 
there is both discipline and encouragement in 
the feeling that they belong to a fraternity which 
cherishes a fraternal interest in their behavior. 
1 know the bar will pardon me if I entreat them 
not to let the feeling perish. There is degener- 
acy in its decay. It is no longer fostered as of 



.iriHiE nrHFEK's oration. 15 

old by the circumstances of the bar. Let, then, 
the leaders of the bar create and improve op- 
portunities for its cultivation. 

Another effect of the increase of litigation 
shows itself in the decline of forensic oratory. 
The lawyer who has many cases to try must 
husband his powers. He cannot exert them as 
prodigally as if he had but few. He, therefore, 
adopts a more simple and business-like manner of 
speech. Again, it is not every case that admits 
of oratory. Cases for eloquence are cases which 
involve the primary interests or appeal to the 
primary feelings of mankind. It is when some 
personal or domestic right is violated, or politi- 
cal privilege impugned, or historic principle in- 
voked, or when the mystery of crime awakes 
curiosity or appals the conscience, or when a 
case abounds in revelations of character or of 
striking contrasts and vicissitudes, that eloquence 
finds its appropriate field and safely essays its 
sublimest flights. But such cases are few and 



16 COURT HOUSE DEDICATION. 

do not multiply with the progress of society. 
In our day the cases which chiefly employ the 
courts grow out of the complexities of business, 
and relate to artificial or conventional rights and 
duties, or to questions of negligence, or to pecu- 
niary values, or to interests in property, or to 
the more delicate demarcations of power and 
responsibilty in business affairs. In such cases 
eloquence is of small avail ; but it is precision 
of language, clearness of method, completeness 
of analysis, logical fertility and patness of illus- 
tration, flooding the argument with light— not 
the chromatic splendor of the imagination, but 
the dry, white light of the understanding — 
which carries conviction to the jury, or per- 
suades the court. Such an exhibition of intel- 
lectual power is more fascinating often to the 
appreciative mind than eloquence itself; but it 
is not eloquence, and it does not captivate the 
crowd. 

The same cause has contributed to the same 



JUDGE DURFEE's ORATION. 17 

result in another way, namely, by modifying the 
relations of the court to the jury. In early 
times the court did little l)ut regulate the trial 
and decide questions of evidence. Jt left the 
jury to find its verdict almost without guidance 
or instruction. Under such a system a jury trial 
became a sort of oratorical combat or tourna- 
ment. The argument had the utmost license. 
It mingled ridicule with reason ; it abounded in 
inflammatory appeals to sjmipathy and preju- 
dice; it was enlivened with wit and humor; it 
was interspersed with anecdote ; it revelled in 
personalities ; it was eloquent, impassioned, vitu- 
perative, panegyrical, denunciatory, anything, in 
short, for success. The wrong, if the more ably 
championed, especially if it had the last word, 
was not at all unlikely to triumph over the 
right. The system presented the strongest pos- 
sible stimulus to oratorical talent. It passed 
away with the appointment of trained lawyers 
to the bench, and their appointment was one 



18 COURT HOUSE DEDICATION. 

effect of the multiplication of important civil 
cases. It passed away, not instantly it is true, 
but by degrees ; for the old habits long survived, 
and the judges were slow to assert their just as- 
cendency. 

When I say this I do not mean to indicate or 
justify any encroachment upon the province of 
the jury. The court has no right to argue a 
case. It ought not to express its opinion on 
questions of fact. But it has the right, it is 
often its duty, to lay down the law distinctly 
and authoritatively as it applies to all the dif- 
ferent phases which a case can assume in the 
minds of the jury, and in doing this to present 
the testimony afresh in all its bearings. There 
is, in every case, a logical order, and, when a 
case is put in that order, the points, on which 
its decision will properly turn, come clearly 
out, and the relevant testimony naturally clus- 
ters about them, while the irrelevant, which is 
so apt to l)ias and mislead, drops away like dross 



juixiE duufp^e's oration. 19 

from pure metal when it is refining. To put a 
case thus to the jury is often all that is required 
to clarify their perceptions and make their duty 
patent to them. It is often all that is required 
to neutralize the evils of a perverse or an im- 
moderate advocacy. And certainly before its 
searching operation the bombast and inflation of 
a spurious oratory can hardly fail of falling into 
ridiculous and disreputable collapse. 

But, furthermore, increase of litigation dis- 
courages forensic oratory in still another way. 
Oratory loves the popular ear. It abhors the 
hollow reverberations of empty walls. It lan- 
guishes without a numerous auditory. But a 
court always in session is not a popular resort. 
The public leaves the press there alone to see 
and hear for it. The lawyers, not actually en- 
gaged there, desert it for their offices. It is 
when terms are short that the court attracts the 
multitude ; and then especially, if it is recog- 
nized as an arena for intellectual dis])hiy. Such 



20 COURT HOUSE DEDICATION. 

was the Supreme Court of this State thirty or 
forty years and more ago. The leaders of the 
hiiv then made it a point to be in court constant- 
ly when the court was in session. Lovers of 
intellectual and emotional excitement visited it 
in crowds. The most intelligent citizens were 
frequent spectators of its proceedings. The re- 
sult can be easily imagined. Trials were con- 
ducted under the ordeal of professional criticism 
and under the encouragement of popular appre- 
ciation. Advocacy acquired the perfection of a 
fine art. The trial of a great cause gave delight 
like a drama, and, by reason of its reality, had 
an even more absorbing interest. The fame of 
the leading lawyers of that day is still a treas- 
ured tradition of the bar. We who have never 
seen the men have yet a realizing impression of 
their mental characteristics, and can conjure up, 
as it were, some visionary presentment of their 
persons. To paint their portraits is no part of 
my design. That is for others ; my palette lacks 



JUDGE DURFEe's ORATION. 21 

tlie necessary colors. But nevertheless I may 
be permitted to pause for • a moment and call 
over the roll of their illustrious names ; for to 
do so will bring into clearer relief the reality 
and character of the change which I am assert- 
ing. 

The familiar names will doubtless occur to you 
before I utter them ; blame me not if some oc- 
cur to you which I leave unuttered ; for I can- 
not exhaust the catalogue. There was James 
Burrill, with his practical and persuasive sagac- 
ity, cultivated mind and sterling character ; Na- 
thaniel Searle, with his unerring and lightning- 
like perception of the pivotal points of a case ; 
Tristam Burges, with his brilliant but caustic 
oratory and audacious antagonisms; and passing 
to Newport, Asher Bobbins, with his polished 
speech and affluence of classic learning ; William 
Hunter, with his ornate and modulated rhetoric 
and stately elocution ; Benjamin Hazard, with 
his withering wit and dialectical acumen ; and, 



22 COURT HOUSE DEDICATION. 

passing still on to Narragansett, the late Elisha 
R. Potter, with his commanding personality and 
mascnline common sense. What a galaxy of 
splendid and strongly contrasted minds! And 
others there were, their contemporaries yet sur- 
vivors at the bar, who have for many of us a 
still more living interest. I myself can well re- 
member the stalwart and colossal form of Samuel 
Y. Atwell, towering like a Titan, as with rich 
and sonorous voice he poured out the full vol- 
ume of his spontaneous and powerful eloquence, 
captivating even when it did not convince. And 
still better can I remember the manly port and 
presence of John Whipple and his athletic ac- 
tion, as with distinct and resonant articulation, 
the words dropping from his mouth like coins 
from a mint, he developed the serried strength 
of his arguments and reinforced them with his 
glowing and impetuous declamation. Him Or- 
ville Dewey, once having heard him on the 
hustings, pronounced the most eloquent of men. 



1 



JUDGE DUKFEE's ORATION. 23 

And again, still others there were, memorable 
men, but of a more modern cast of mind, though 
not unschooled in the earlier methods. I will 
mention four of them, and you will pardon me 
if, yielding to the suggestions of memory, 1 do 
something more than merely mention them. 

There was Richard W. Greene, the safe coun- 
sellor, loving the light of ancient precedent, 
learned in the common law and greatly versed 
in equity jurisprudence before any court of the 
State had as yet any considerable equity juris- 
diction ; not a moving orator, but a consummate 
master of analysis, preeminent for his power of 
•perspicuous statement. 

There was Albert C. Greene, a gentleman in 
the truest sense, full of genial kindness and ur- 
banity, dear to the bar and dear to the popular 
lieart, an excellent lawyer, a favorite advocate, 
whose prepossessing fairness and never-failing 
o'ood sense were more invincible often than the 
finest oratory. He was unrivaled as an exam- 



24 COURT HOUSE DEDICATION. 

iner of witnesses. The friendly witness, no 
matter how embarrassed, was instantly pnt at 
ease by his gentle manipulation. But his forte 
was the cross-examination of the hostile or se- 
cretive witness. It was the angler playing with 
his victim. Far from seeking to intimidate, he 
humored him to the top of his bent, putting him 
off his guard and getting his good-will by de- 
grees, while he pleasantly unmasked his prevari- 
cations or concealments, and kept him all the 
time complacently unconscious of the operation. 
There was Thomas F. Carpenter, with his 
Ulyssean mind and amazing art of winning ver- 
dicts in desperate cases. I have often heard 
him. He was exceedingly plausible and ingeni- 
ous, a sort of magician of the forum. In his 
hands the flimsiest supposition or conjecture 
quickly got to looking like a solid fact. He 
was an actor as well as an advocate. He man- 
aged every case with imposing seriousness, as if 
he felt its justice and impoi-tance too deeply to 



JUDGE DURFEE's ORATION. 25 

trifle with it. He treated the court, liowever 
unfavorable, with deferential respect ; for he 
wished, if possible, to seem always to have it 
on his side. And deferential as he was to the 
court, he was still more deferential to the jury. 
This, in itself, was a potent piece of flattery. 
But it was not enough for his purposes. He 
knew the insatiate swallow of mankind. He 
plied the jury with compliments, lavished or in- 
sinuated at every point. You think, perhaps, 
the artifice was too shallow to succeed. I doubt 
not the jurors thought so too ; but, all the same, 
he got his verdicts from them ; especially when 
he had the closing argument. But let me not 
be misunderstood. I do not mean that he was 
great only in desperate cases, and before a jury. 
He was a man of extraordinary powers, as well 
as of extraordinary idiosyncrasies, and whoever 
crossed weapons with him in any cause was sure 
to encounter a formidable antagonist. 

Finally there was Samuel Ames, not a lawyer 



26 COURT HOUSE DEDICATION. 

merely but a jurist, cultivating jurisprudence as 
a science or a philosophy. His capacious mind 
was not only stored, but impregnated and fertil- 
ized with the principles and precepts of the law 
as with so many living and procreant germs. His 
juridical fullness and fertility were apparent, not 
only in his forensic efforts, often too exhaustive 
for the occasion, but even in his common con- 
versation, which, moreover, was as vivacious as 
it was instructive. As Chief Justice he has left 
in the Rhode Island Reports many a permanent 
proof of his powers, but nothing which duly 
represents the brimming exuberance and facility 
of his intellect. No Rhode Island lawyer ever 
exhibited so full and so supple a mastery of the 
complex and enormous system of English juris- 
prudence. 

This brief retrospect confirms my view. — 
Among the lawyers just named, the two who 
are most femiliar to us are Richard W. Greene 
and Samuel Ames. They were neither of them 



jrnrxK dfrfke s ohation. li 

splendid orators, like Whipple or Burges. They 
were effective speakers; but for ns their chief 
distinction is that they were masters of the 
modern method, and so can teach ns more than 
their more eloquent contemporaries or predeces- 
sors. Another master of that method, known 
to all of us, was the late Thomas A. Jenckes. 
He had the intellectual weight and momentum 
and the large utterance, but not the magical 
manner and self-enkindling enthusiasm of the 
orator. The track of his career lies shining 
along the steeps and among the summits of his 
profession. It indicates the path of success for 
our day. What is that path, — the modern 
method, as T have denominated itV It is not a 
path for lazy genius, dreaming of unearned re- 
nown. It is not a showy method, in which sham 
can serve for substance. It is the metliod of 
prudent business, seeking valuable ends through 
means appropriate to them. It is the method 
of indefatigable study, of disciplinary practice. 



28 COURT HOUSE DEDICATION. 

of varied and accurate acquirement. It is the 
method which demands for particular cases the 
mastership of particular preparation. It is the 
true method for all earnest aspirants to juridical 
distinction. Profit may be reaped on the lower 
levels ; but honor and fame grow aloft, where 
they cannot be reached without climbing for 
them. Let the brave student gird himself for 
the ascent. It is diflficalt, but full of exhilara- 
tion. Just now, too, there is a fresh breeze 
blowing, vivifying what it blows upon. A new 
light, rising in the dusky dawn of the primeval 
world, is just beginning to shine through the 
lenses of history and archaeology into the ob- 
scurer provinces of the law. The study of com- 
parative jurisprudence is showing that there is 
in law, as there is in language, a substratum 
common to the Aryan nations, pointing to their 
common origin, and so imparting to the dry est 
and most crabbed of legal antiquities a truly 
human and philosophical interest. The profes- 



JUDGE DURFEe's ORATION. 29 

sion of the law, tlierefoi'e, though it may have 
lost some of its oratorical prestige, was never 
more attractive than it is to-day, as an intel- 
lectual and liberalizing pursuit. 

But because forensic oratory has declined, it is 
not to be presumed that it has perished. It has 
merely descended from the chief to a subaltern 
position. Even there it can often be used with 
enchanting and irresistible effect. Oratory is 
one of the divinest of the arts, and it cannot lose 
its potency so long as the human heart retains 
its human sensibilities. No young lawyer who 
feels its birth-throes need smother them in his 
bosom ; for eloquence, if genuine, is always well 
received. How quickly does the court-room fill, 
even in our day, when it is bruited abroad that 
some case is coming on which involves matter 
of deep passion or popular concern, to be han- 
dled by eloquent and well-matched advocates. 
How eagerly the spectator listens to the open- 
ing words. How curiously he scans the parties. 



30 COURT H0U8E DEDIUATTON. 

How soon his curiosity warms into interest, and 
liis interest into partisanship. For what is there 
more fascinating than a great trial conducted by 
great lawyers. It is a battle in which powerful 
antagonists contend for victory. It is a drama 
in which the innermost phases of human nature 
are developed and displayed. It is an arbitra- 
ment where justice holds the scales and })ro- 
nounces her dooms. No wonder men flock in 
crowds to witness it. 

For one I rejoice to have them do so. I want 
no secret tribunal. There is nothing like pub- 
licity to make the administration of justice pure 
and upright. Moreover, the presence of the 
people in court-room and jury-box have done 
much to keep the law on a level with their plain 
sense and wholesome feeling, and to save it from 
over refinement and piddling distinctions. We 
all know, too, that the time has been in England 
when the jury box was one of the strongholds 
of freedom. It is well for justice herself to feel 



JUDGE DURFEe's ORATION. 31 

the influence of fresh and ingenuous minds, to 
deliver her from the bondage of her own pre- 
cedents. It is well for bench and bar to have 
the public eye upon them ; for men are kept at 
their best by observation and criticism. Finally, 
it is well for the people, for their own good, to 
frequent the high tribunals where their rights 
are vindicated and their wrongs redressed. I 
am glad that Itere there is provision for them. 
And here I trust, for many generations, forensic 
oratory, not so transcendant it may be as of old, 
nor yet so unbridled, but chastened and subor- 
dinated, will continue to attract and delight 
them. 

One other eftect on the bar of an increase of 
litigation remains to be noted. DeTocqueville, 
in his book on Democracy in America, celebrates 
the predominance of lawyers in American poli- 
tics. He holds that lawyers as a class are con- 
servative, lovers of order, foes to innovation, 
followers of precedents, and so the natural coun- 



32 COURT HOUSE DEDICATION. 

terpoise to popular excesses ; and he predicts 
the rum of the republic unless their influeuce 
keeps pace with the growth of popular power. 
No one who knows the past will deny the fact 
which he asserts, whatever he may think of his 
prophecy. Consider a moment the century 
which has just closed. What a host of brilliant 
names come trooping to remembrance : Hamil- 
ton, Adams, Jefferson, Madison, Marshall, Web- 
ster, Clay, Calhoun, Benton, Seward, Lincoln, 
Stanton, Chase, Sumner and a hundred others. 
To pluck them out of American history would 
be like plucking the stars from the firmament. 
Great lawyers in great places ! But consider 
also the unhistoried myriad who, in obscurer 
offices and narrower spheres, have been fashion- 
ers of public opinion. Who can estimate the 
value of their influences? Who can tell how 
difi'erent the political history of the century 
might have been but for their enlightened pa- 
triotism ? 



JUDGE DURFEe's ORATION. 33 

Now I think it is evident that the influence of 
the profession in pivblic and political matters is 
wanino-. This is attributable to several causes. 
Chief among them is the diffusion of education, . 
which, by raising the general level of intelli- 
gence, lessens the difference between lawyers 
and laymen. But the increase of legal business 
is a cause which is hardly less powerful. The 
leaders of the bar are absorbed in their profes- 
sion, to the exclusion of other interests and pur- 
suits. And this absorption is intensified by 
augmented fees. The love of lucre is the great 
lever of the modern world, and is, I fear, as 
potent with lawyers as with other men. The 
prosperous lawyer has no leisure for politics un- 
less he makes it ; and his practice is so profitable 
that he too often refuses to make it. And so he 
toils and moils, and gathers gain and ends by 
becoming the slave of his own speciality. Of 
course this is all wrong. No citizen has a right 
to abdicate his citizenship. The abler he is, the 



34 COURT HOUSE DEDICATION. 

more sacred his duty is, to think for and counsel 
and serve the State. I admire the ideal exem- 
plified by the great lawyers of Republican Rome, 
who, however numerous their clients, never for- 
got to be citizens and patriots, and who, whether 
in or out of ofl&ce, were always a power in the 
commonwealth. The word which the old Latin 
writers select to express their quality is " auc- 
foritas^''^ meaning not so much official as personal 
influence and authority, or weight of character 
in public matters. I wish our great American 
lawyers would aspire to the same distinction. 

Permit me a moment more on this point. We 
live in an age of political and social ferment. 
The spirit of communism is abroad. The old 
Hydra of inflation grows rampant again. The 
relations of labor and capital are disturbed. 
New ideas in regard to property are promulga- 
ted. New and unsettling ideas in regard to all 
things are freely broached and discussed, not 
alone in speculative circles, but among the com- 



^ 



JUDGE DURFEE'b ORATION. 35 

men people. Visionary reformers teem with 
projects of legislation. Innovation is the order 
of the day. I trust that in the end some good 
will somehow come out of all this turmoil of 
revolutionary thought. But meanwhile it af- 
fords tempting opportunities for demagogy. 
The cryiug need of the times is wisdom and 
ripe experience, combined with disinterested 
patriotism, to enlighten public opinion. Where 
can we look for them, if not in the legal profes- 
sion? The accomplished lawyer is by education 
nine-tenths of a statesman. He has what, in the 
conglomerate of races which constitutes the Am- 
erican people, so few have — a living sense of 
the continuity of our civilization. He knows 
how it has broadened "slowly down from pre- 
cedent to precedent." He can trace through a 
thousand years the glorious lineage of our liber- 
ties. He can follow the right of property back 
almost to its origin. He knows the steps by 
which it has been emancipated from feudal fet- 



36 COURT HOUSE DEDICATION. 

ters. He knows the sanctions by which its in- 
violability is secured. He can see how, pivoted 
upon that inviolability, it has become the main- 
spring of modern progress. For him, to-day is 
but yesterday unfolding. He distrusts the bast- 
ard progress that cannot find its pedigree in the 
23ast. It is this peculiarity of his education which 
makes him conservative and fits him to play the 
part which De Tocqneville assigns him in Ameri- 
can politics. It is true, conservatism is never 
safer than when it is progressive. This the ac- 
complished lawyer knows ; for the common law 
is an example of it. He has learned from that 
law to reason and generalize and advance ; but 
always step by step, feeling the ground before 
him. There is no leap in the dark — no abstract 
theorizing — no coursing with the winged Pega- 
sus of phantasy. Besides, his practice brings 
him into acquaintance with many minds and 
shows him human nature as it is. He has 
learned what it is, too well, to mistake the Uto- 



JUDGE DURFEe's ORATION. 37 

pia of the enthusiast or charlatan for the real 
world. Having a mind of such prudence, such 
knowledge, such various training and capability, 
he needs only preserve his probity and patriot- 
ism and keep himself conversant with the ques- 
tions of the day, to be the weightiest of public 
counsellors. To be so is surely worth some 
sacrifice. Indeed, the profession ought to con- 
sider that it cannot lose its political ascendency 
without losing character and caste as a profes- 
sion. 

I must bring my address to an end. This 
house is designed to endure for ages. To-day 
it is barren of all forensic associations. It has 
no history. A century hence, and what a mul- 
titude of memories and traditions will cluster 
about it. What revelations of human character 
and destiny will have been made within it. Add 
yet another century, and no many-chaptered 
chronicle of Eld were more multifariously curi- 
ous and instructive than these dumb walls, if. 



38 COURT HOUSE DEDICATION. 

then, they could but report then- past. In creat- 
ing their history, the bar and the bench will 
necessarily play a principal part. Upon them 
will it depend whether the history shall bring 
honor or discredit. I^et us then, my brothers 
of the bar and bench, realizing this, elevate our- 
selves above all mean and all merely mercenary 
views to a high and just conception of our vo- 
cation ; and now, while we dedicate this temple 
of justice, let us also dedicate ourselves, as min- 
isters of justice, to an upright, pure and honor- 
able service within its consecrated precincts. 



) 



ORATION 



DELIVEKEI) AT THE 



DEDICATION 



Providence County Court House, 



DECEMBER 18, 1877, 



By the Hon, Thomas Durfee, 



CHIEF .irSTICE OF THE SUPREME COURT OF THE STATE OF RHODE TSI,ANI». 



P R O V I D E N C E : 

v.. L. IKKl'.MAN iSi CO., PRINTERS TO THE STATE. 
1879. 



LIBRARY OF CONGRESS 



014 110 176 6 



